Yelton v. Plantz

Decision Date11 March 1948
Docket Number28402.
Citation77 N.E.2d 895,226 Ind. 155
PartiesYELTON et al. v. PLANTZ, Trustee of School Townships.
CourtIndiana Supreme Court

Appeal from Miami Circuit Court, Henry S. Bailey, Judge.

Reed & Reed, of Knox, for appellants.

J Murray McCarthy, Charles C. Campbell, and Brown & Brown all of Rochester, for appellee.

YOUNG Judge.

This is an action brought by appellants as taxpayers against the appellee, as Trustee of Aubbeenaubbee Township, Fulton County, Indiana, to enjoin him from carrying out a contract for the construction of a school building. Appellant's complaint alleged in substance that appellee advertised for bids for the construction of a 16 room school building completely finished inside, including plumbing and electrical equipment; that the advertisement called for three separate bids, one for the construction of the building, one for the installation of the plumbing and one for the installation of wiring and electrical fixtures; that the combined bids of the lowest bidders for said three types of work amounted to $125,000; that the appropriation available for the construction of said school building was $102,000; that without readvertising for bids, the appellee entered into a contract for the partial construction of said building to the amount of the available appropriation; that said contract required only four rooms to be finished and only part of the wiring and plumbing to be installed; that the balance of the rooms were not to be partitioned off, were not to be plastered, were not to be wired and were not to be finished with interior trim, and doors and windows were not to be completely installed; that by the contract appellee agreed to cause a sinking fund to be established and tax livies to be made in an amount to make available the further sum of $23,000 for the completion of said building; that the contractors agreed that they would complete said school when and if said $23,000 tax levy was made; that there was no appropriation of said $23,000; that said contract was entered into by appellee, notwithstanding the fact that the township advisory board had refused to approve the creation of said sinking fund and the making of said levy.

This complaint was filed on November 1, 1946. The 1947 session of the General Assembly passed an act purporting to legalize the transactions complained of in said complaint, which legalizing act was approved and became effective on March 12, 1947. Ch. 192, Acts of 1947.

On March 20, 1947, appellee filed a motion to dismiss said cause, based solely upon the ground that the legalizing act had cured all the alleged infirmities of the transactions complained of. This motion was sustained by the court, and, on June 19, 1947, judgment was entered, dismissing the case. On September 9, after the close of the term at which said judgment of dismissal was entered, appellants filed a motion to set aside the judgment and for leave to plead over, which was overruled on September 15, and this appeal was perfected on September 17, 1947.

Appellants assign as errors the dismissal of appellants' casue and the overruling of appellants' motion to set aside the judgment of dismissal and for leave to plead over.

As we view the case, only a question of procedure is before us, that is, whether it was proper for the court to dismiss the action upon the alleged ground that a statute passed subsequent to the beginning of the action had cured the faults upon which plaintiffs relied in their complaint and had thereby left the complaint without facts sufficient to entitle plaintiffs to the injunction prayed for.

We have two statutes in Indiana to which reference is made by the parties in their briefs. One statute provides for dismissal on certain specified grounds, § 2-901, Burns' 1946 Replacement, and the other authorizes the rejection of a pleading as sham when it plainly appears upon the face thereof that it is false in fact and intended merely for delay. § 2-1054, Burns' 1946 Replacement.

The statute first above referred to provides that actions may be dismissed without prejudice, 'First. By the plaintiff, before the jury retires; or, when the trial is by the court, at any time before the finding of the court is announced. Second. By the court where the plaintiff fails to appear on trial. Third. By the court, on the refusal to make the necessary parties, after having been ordered by the court. Fourth. By the court, on the application of some of the defendants, where there are others whom the plaintiff fails to prosecute with diligence. Fifth. By the court, for disobedience by the plaintiff of an order concerning the proceedings in the action.' This section then provides that, in all other cases, upon the trial, the decision must be upon the merits. There is nothing in this statute which would authorize the involuntary dismissal of plaintiffs' complaint in this case because a subsequent statute did, or attempted to, cure the faults upon which plaintiffs relied to create their alleged cause of action.

The second statute above referred to, contemplates that a pleading, which clearly appears upon its face to be false in fact and intended merely for delay, is sham, and for this reason may be rejected and the procedure indicated by our practice to invoke this section of the statute is a motion to strike. There are other grounds which have been held to justify the striking of a pleading such as, if not signed, or if not verified when required, or if it contains scandalous matter, or if an order of court has not been obeyed, or if an amended pleading adds nothing to the original pleading. Gavit Indiana Pleading and Practice, pp. 599, 600, and cases cited in Notes 63 to 69 inclusive. In discussing the propriety of the dismissal of this action, both parties have treated motions to strike and motions to dismiss as in substance the same thing and, with this, we are in accord. Striking a complaint has the effect of dismissing the action. Gavit Indiana Pleading and Practice, p. 1021; Carlstedte v. Rohsenberger, 1908, 43 Ind.App. 263, 264, 85 N.E. 996.

It has been held that, under our practice a court has no power to order an involuntary nonsuit, Williams v. Port, 1857, 9 Ind. 551; Stults, Administrator v. Forst et al., 1893, 135 Ind. 297, 306, 34 N.E. 1125, and it has been frequently held, and is well established, that the sufficiency of a complaint cannot be tested by a motion to strike or a motion to dismiss. Loftin v. Johnson, 1940, 216 Ind. 537, 542, 24 N.E.2d 916; Huffman v. Newiee, 1919, 189 Ind. 14, 26, 124 N.E. 731; Moorehouse v. Kunkalman, 1911, 177 Ind. 471, 481, 96 N.E. 600; Toledo, & Indiana Traction Co. v. Toledo, etc., R. Co., 1908, 171 Ind. 213, 223, 224, 86 N.E. 54; Guthrie v. Howland, 1905, 164 Ind. 214, 221, 73 N.E. 259; Connelly v. Hundley, 1933, 96 Ind.App. 439, 444, 185 N.E. 309; Connelly v. Calender, 1933, 96 Ind.App. 432, 438, 185 N.E. 338; Jones v. Evanoff, 1944, 114 Ind.App. 318, 319, 52 N.E.2d 359; Ederer v. Froberg, 1945, 115 Ind.App. 414, 419, 59 N.E.2d 595; Gavit Indiana Pleading and Practice, p. 642. If, in the case before us, it was the desire of appellee to test the sufficiency of the complaint in the light of the legalizing act, which was clearly the purpose of the motion, appellee should have demurred.

In the case of Loftin v. Johnson, supra, there were a number of defendants and part of them demurred to the complaint and part of them filed motions to dismiss the cause. The motions to dismiss were sustained and this court held that under the circumstances of that case the sustaining of said motions did not constitute reversible error even though it was recognized that the proper method of presenting the questions contained in the motion to dismiss was by demurrer. The court said that the reasons stated in the motion to dismiss would have been appropriate grounds for demurrer and that the form of pleading was not important but that its substance was controlling, and the motions were treated as demurrers. We have examined the record in the Loftin case and find that the order sustaining the motions to dismiss and the order sustaining the demurrers were almost identical in form and substance. The order shows that the motions to dismiss were sustained with exceptions and that the plaintiffs refused to plead further and judgment was...

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